POLICY
PAPER
European Issue n°173
14th june 2010
from Xavier Groussot,
Fundamental Rights Protection
in the European Union post
Lisbon Treaty
Associate Professor of Law, Faculty
of Law, Lund University
and Laurent Pech,
Introduction
Lecturer in Law, Jean Monnet
The 1957 Treaty establishing the European Economic Community (EEC) has long been silent on the
Chair in EU Public Law, National
protection of fundamental rights within the legal order of the Community. Although it did refer to
University of Ireland, Galway
the principle of non-discrimination on the basis of nationality and some workers’ rights, the Treaty
lacked a proper bill of rights. It has been suggested that the idea of including a comprehensive bill
of rights was rejected on the grounds that this may be wrongly construed as an undue extension of
the powers of the EEC when its primary goal was the attainment of economic integration by establishing a common market. Furthermore, another organisation was already in charge of protecting
fundamental rights in Europe: the Council of Europe, founded in 1949.
The lack of specific and exhaustive provisions for the pro-
With the entry into force of the Lisbon Treaty last De-
tection of fundamental rights has not meant, however,
cember, the Charter has finally become a legally bin-
the absence of legal protection. As early as 1969, and to
ding and core element of the Union’s legal order. This is
answer the concerns expressed by some national courts,
not, however, the sole major change – albeit undoub-
the European Court of Justice (ECJ) finally held that fun-
tedly the most controversial – brought about by the
damental rights form an integral part of the general prin-
Lisbon Treaty as the EU has also gained the constitu-
ciples of law whose observance the Court ensures (see
tional power to seek accession to the ECHR. Before of-
Case 29/69). From then onwards, the ECJ has regularly
fering a concise yet critical overview of the legal impact
interpreted or reviewed the validity of EC measures in the
of these two keys changes, or rather the likely impact
light of fundamental rights as protected in the Commu-
in the case of EU accession to the ECHR, the content of
nity legal order. Yet for all these legal developments, the
the main amendments made to Article 6 TEU, the key
EC still lacked a codified declaration of rights of its own.
treaty provision as far as EU respect for fundamental
As a result, it has been regularly argued, most notably
rights is concerned, will be briefly described.
by the European Commission in a 1979 memorandum,
that the EU should seek accession to the 1950 European
1. Main amendments made to Article 6 TEU
Convention for the Protection of Human Rights and Fun-
Policies
damental Freedoms (ECHR). Such a change, however,
EU Member States have long advertised their deter-
was held by the ECJ to constitute a fundamental consti-
mination “to work together to promote democracy
tutional change, which could not be implemented without
on the basis of the fundamental rights recognized in
a prior revision of the founding Treaties (see Opinion
the constitutions and laws of the Member States, in
2/94). This legal impasse finally convinced EU leaders to
the Convention for the Protection of Human Rights
consolidate EU fundamental rights in a single document
and Fundamental Freedoms and the European Social
essentially to enhance the visibility of those rights. After
Charter, notably freedom, equality, and social justi-
much acrimonious debate, the Charter of Fundamental
ce” (Preamble of the Single European Act, 1986). Yet
Rights of the EU (the Charter) was “proclaimed” on 7
no treaty provision specifically dealt with the general
December 2000.
matter of fundamental rights protection until the 1992
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Fundamental Rights Protection in the European Union
post Lisbon Treaty
02
Maastricht Treaty when a new Article F(2), essentially
ter “does not produce binding legal effects comparable
codifying the case law of the Court, provided that the
to [EC] primary law, it does, as a material legal source,
EU must respect fundamental rights as general princi-
shed light on the fundamental rights which are protec-
ples of law. This treaty provision, which became known
ted by the Community legal order” (Opinion in Case
as Article 6(2) TEU following the entry into force of the
C-540/03, para. 108). In practice, EU judges, in a large
Amsterdam Treaty, was further amended to make clear
number of cases, have found it useful to refer to the
that the EU is based inter alia on the principle of res-
Charter as a substantive point of reference to assist
pect for fundamental rights (Article 6(1) TEU). Overall,
their interpretation.
Article 6 TEU did not bring about a radical legal change.
For most observers, and more importantly, most na-
By contrast, the “new” Article 6 TEU, as amended by
tional governments, this situation was not satisfac-
the Lisbon Treaty, illustrates, if one dare say, both a
tory. The incorporation of the Charter into the 2004
quantitative and qualitative jump. Following some pro-
Constitutional Treaty as its Part II was, therefore, lar-
tracted negotiations and unfortunate compromises,
gely welcomed. This broad support also explains why
two key reforms survived the “abandonment” of the
the European Council’s decision to abandon this latter
Constitutional Treaty. Indeed, the new Article 6 TEU
text in June 2007 did not lead to the abandonment of
not only makes the Charter legally binding, it also pro-
the Charter. However, the text of the revised Charter
vides that the EU shall accede to the ECHR. The post
- some changes were in particular made to the “hori-
Lisbon role reserved for the general principles of law
zontal articles” (see infra Section 2.1.2) during both
and the reforms relating to the jurisdiction of the EU
the negotiations on the Constitutional Treaty and, to a
courts will also be briefly alluded to.
minor extent, the Lisbon Treaty - has not been reproduced into the main body of the Treaties or even in a
1.1 Change to the legal status of the Charter by
Protocol annexed to the EU Treaties. Instead, Article
cross-reference
6(1) TEU makes a “cross reference” to the text that
The first most significant and immediate change re-
was “re-proclaimed” in Strasbourg on 12 December
lates to the status of the Charter. As amended by the
2007, one day before the signing of the Lisbon Treaty.
Lisbon Treaty, Article 6(1) TEU provides that the EU
One may deplore this choice from a didactic or reada-
“recognises the rights, freedoms and principles set out
bility point of view but legally speaking, the final result
in the Charter of Fundamental Rights of the European
remains very much the same: the painful but ultima-
Union of 7 December 2000, as adapted at Strasbourg,
tely successful ratification of the Lisbon Treaty means
on 12 December 2007, which shall have the same legal
that the EU Charter has now become a cardinal ele-
value as the Treaties” (our emphasis).
ment of the Union’s body of “primary”, that is, “constitutional” rules. The fact that the text of the Charter is
This change to the legal status of the Charter follows
available as a stand-alone document in the EU’s Official
a prolonged battle as regards the question of whether
Journal (OJEU C 83/391, 30 March 2010), rather than
and, if so, how the Charter should be made legally bin-
reproduced in the substantive text of Treaties, whose
ding. To put it rather schematically, Tony Blair’s go-
consolidated version was published in the same issue
vernment was particularly keen to neutralise any legal
of the Official Journal (OJEU C 83/01, 30 March 2010),
effects it may produce by opposing any incorporation
is irrelevant in that respect. Before reviewing at grea-
into the founding treaties. The British government’s in-
ter length the impact of the change to the legal status
transigence initially paid off and the Charter was merely
of the Charter, the provision dealing with EU accession
“proclaimed” by the Council, in association with the Eu-
to the ECHR should be briefly presented.
ropean Commission and the European Parliament. The
Policies
rather ambiguous nature of the notion of proclama-
1.2 EU accession to the ECHR
tion has not precluded the Charter from having a “soft”
New Article 6(2) TEU provides that the Union “shall
impact on the case law of EU courts. As explained, for
accede” to the ECHR – this provision therefore requires
instance, by Advocate General Kokott, while the Char-
EU action rather than merely offering an option – and
Fondation Robert Schuman / EUROPEAN ISSUE n°173 / 14th jUNE 2010
Fundamental Rights Protection in the European Union
post Lisbon Treaty
that “such accession shall not affect the Union’s com-
not currently a party to the ECHR has not precluded
petences as defined in the Treaties.”
the ECJ from relying heavily on its provisions as well
as the case law of the ECtHR when developing its fun-
This provision is the bye-product of a long and convo-
damental rights jurisprudence via the notion of general
luted history. Proposals for accession of the Commu-
principles of law.
03
nity to the ECHR have indeed been discussed on and
off since the late 1970s. Following the ECJ’s opinion
1.3 Fundamental Rights as General Principles of
holding that EU accession requires treaty revision as it
Law
would result in a substantial change to its system for
As amended by the Treaty of Lisbon, Article 6(3) TEU
protection of human rights, this idea was put to the
provides that “Fundamental rights, as guaranteed by
back burner until it re-emerged at the time of the draf-
the [ECHR] and as they result from the constitutional
ting of the Constitutional Treaty. For the first time, it
traditions common to the Member States, shall consti-
was also agreed that the Charter would be transformed
tute general principles of the Union’s law”.
into a legally binding instrument and that the adoption
of an EU Bill of Rights and EU accession to the ECHR
In doing so, the new Article 6(3) TEU closely reflects
should be pursued as complementary rather than al-
the formerly existing provision, which itself merely ack-
ternative goals.
nowledged an early jurisprudence of the ECJ according
Numerous arguments have been offered in support of
to which respect for fundamental rights forms an inte-
EU accession to the ECHR. It is worth briefly mentio-
gral part of the general principles of law protected by
ning the most significant ones if only to realise that legal
the Court. The Court’s early case law also made clear
concerns may not be the decisive ones. First and fore-
that in identifying particular fundamental rights and in-
most, EU accession has been defended on the ground
terpreting their content, the Court draws “inspiration”
that it would be symbolically important as it would send
from the constitutional traditions of the Member States
a positive message stressing the EU’s commitment
(Case 11/70) and from international human rights
to fundamental rights protection internally as well as
treaties (Case 4/73). As regards the ECHR, it is worth
externally. Secondly, EU accession would also give a
stressing that the ECJ rapidly recognised its “special
strong signal of the coherence between the EU legal
significance” amongst those international treaties even
system and the national ones. To the non-specialist, it
though this expression was not explicitly used before a
may indeed be quite difficult to understand why the EU
1989 ruling (Joined Cases 46/87 et 227/88). And while
is not formally bound by the ECHR whereas EU member
the ECJ has no jurisdiction to apply the ECHR, as it
states are all members of the Council of Europe and
does not constitute a formal source of EU law, the ECJ
accession to the ECHR is one of the conditions of entry
has extensively referred to its provisions as well as the
into the EU. More legalistic arguments have been offe-
case law of the ECtHR to assist its interpretation of EU
red. For instance, EU accession to the ECHR has been
human rights standards.
defended on the ground that it will eventually afford ci-
By continuing to refer to the concept of general prin-
tizens protection against EU acts similar to that which
ciples of law, the EU Treaty enables the EU courts to
they already enjoy against national measures. It is also
eventually go beyond the fundamental rights protec-
often assumed that such a step is required to preclude
ted by the Charter and/or the ECHR. This may prove
any potential divergence in human rights standards
important as, for instance, the interpretation and ap-
between the ECJ and the ECtHR. Viewed in this light,
plication of the EU Charter is made extremely com-
the fact that the ECJ would come under direct, external
plex by a series of confusing “horizontal clauses” to
and specialised judicial supervision in the same fashion
be examined infra. The change to the legal status of
as national courts, is seen as a desirable development.
the EU Charter also raises the question of whether the
general principles of law may, or rather should pro-
While EU accession to the ECHR raises a certain number
gressively become, as suggested by several influen-
of issues (See infra Section 3), the fact that the EU is
tial actors, a subsidiary and complementary source of
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EU fundamental rights by contrast to the EU Charter,
EU with one exception: the ECJ has gained jurisdiction
which should be considered the “primary source”. From
over actions for annulment brought against decisions
this perspective, EU courts should only rely on general
of the Council providing for restrictive measures (e.g.
principles of law where there is a need to remedy the
freezing of assets) against natural or legal persons in
Charter’s eventual lacunae. In any event, it is quite
connection, for example, with combating terrorism. In
clear that general principles of law are here to stay.
any event, EU accession to the ECHR is likely to mitigate the ECJ’s lack of jurisdiction over CFSP measures
1.4 Miscellaneous
as the ECtHR refuses to exclude such acts from being
As a Union formally based on the principle of the rule
judicial reviewed.
of law, the EU is supposed to offer a complete set of
As regards annulment actions and legal standing, the
legal remedies and procedures in order to ensure that
Treaty of Lisbon also enables privates parties, for the
its institutions, as well as its Member States where
first time, to challenge the legality of self-executing
relevant, adopt measures in conformity with the EU’s
“regulatory acts” of direct concern to them – an alrea-
“constitutional” rules. The ECJ has also regularly held
dy significant obstacle in practice – without having to
that the rule of law means that natural and legal per-
prove as well they are also individually concerned.
sons must be able to challenge the legality of any act
While this is a modest yet welcome change, one may
that affects their EU rights and obligations. Put simply,
regret that the Treaty of Lisbon does not provide for
there was a clear need here to bridge the gap between
a special remedy to challenge EU measures allegedly
theory and reality as the unfortunate “three-pillar”
violating EU fundamental rights, which could have been
structure created by the Maastricht Treaty has long
based on the remedies existing either in Germany or
meant that EU measures could not always be subject
Spain. The EU courts’ already bloated caseload is no-
to judicial review. By ending the previous patchwork
netheless a powerful counter-argument and as long as
of confusing restrictions imposed on the jurisdiction of
access to the Strasbourg Court is effectively organised,
the ECJ and marginally reforming the law of legal stan-
a special remedy might not be justified on pragma-
ding for individuals in annulment actions, the Treaty of
tic grounds. This, however, should not have precluded
Lisbon offers a series of positive changes which should
conferring on the recently established EU Fundamental
be briefly mentioned as they are likely to impact on the
Rights Agency the right to bring annulment actions for
protection of fundamental rights.
the purpose of protecting fundamental rights.
As regards the jurisdiction of the ECJ, the most impor-
2. Legal impact of the new EU Charter’
tant change relates to measures adopted in the area of
status
Freedom, Security and Justice (new Title V, Part III of
the TFEU), which will all come under the general juris-
The question of whether the Charter post Lisbon Treaty
diction of the Court. For instance, preliminary referen-
is likely to have a significant legal impact is not an easy
ces will, for the first time, be possible from all national
one to answer. In order to do so, one must not only
courts and tribunals on questions relating to asylum,
assess whether the Charter should be mostly unders-
immigration and civil law matters. Another reform
tood as a consolidating effort but also attempt to make
worthy of note is the new “urgent preliminary ruling”
sense of the general provisions that govern its inter-
procedure on the basis of which the ECJ, where applica-
pretation and application. Less decisive albeit highly
ble, can act with “minimum delay” in giving preliminary
controversial aspects such as the justiciability of the
rulings at the request of Member States, where, for ins-
Charter’s socio-economic rights or the British/Polish
tance, an individual is in custody. Generally speaking,
“opt-out” also deserve to be succinctly explored.
the ECJ nonetheless continues to lack jurisdiction in
Policies
respect of law and order or security measures adopted
2.1 Consolidation or revolution?
by the Member States as well as over common foreign
While the adoption of a formal EU declaration of rights,
and security policy (CFSP) measures adopted by the
along with EU accession to the ECHR, has long been
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post Lisbon Treaty
advocated, this idea was only successfully revived in
(e.g. the right to the protection of personal data,
January 1999 thanks to the German Foreign Affairs Mi-
the right to a high level of environmental protection,
nister, Joschka Fischer, who proposed the drafting of
etc.), but rather the fact that these rights, while ar-
an EU “Charter of Basic Rights” primarily in order to
guably not new rights, as they already enjoy some
remedy a perceived “rights deficit”. EU leaders proved
protection under various legal instruments, had not
accommodating and the European Council, at its Colo-
hitherto been regarded as fundamental rights in the
gne meeting in June 1999, decided to convene an ad
EU context. To put it differently, while rights such as
hoc body, later known as the Convention, and whose
the right to good administration or the right of access
mission was to consolidate the fundamental rights
to preventive health care already enjoyed a varia-
applicable at EU level in a single text “to make their
ble degree of protection under EU law and in most
overriding importance and relevance more visible to
Member States on the basis of national law and/or
the Union’s citizens” (Presidency Conclusions). It is
international law obligations, their consecration as
therefore quite obvious that national governments did
fundamental rights was still missing.
05
not wish to guarantee “new” rights but rather hoped
to strengthen the EU’s legitimacy by making it easier
This new “labelling” does not, however, automatically
for the layperson to rapidly appreciate the nature and
transform them into directly enforceable individual
extent of his or her fundamental rights under EU law.
rights because of the change to the status of the Char-
A key question is whether the content of the EU Char-
ter. This is in reality true of all the Charter’s rights,
ter illustrates a departure from the European Council’s
freedoms and principles, which means that individuals
instructions by guaranteeing new rights?
have not gained new “options” to challenge the legality
of EU measures or national measures where relevant.
2.1.1 “New” v. existing rights
Similarly, it does not mean that the EU has gained
The Charter itself explains that it “reaffirms” - with due
new powers, or that the EU Charter has now become
regard for the powers and tasks of the EU and for the
the equivalent of the US Bill of Rights as we shall see
principle of subsidiarity - fundamental rights as they
below. EU Courts, however, must now pay due regard
result from various sources, including the ECHR, na-
to the new “status” conferred on the Charter’s rights.
tional constitutional traditions and international obliga-
This should especially matter in the situation where
tions of Member States, the Social Charters of the EU
a Charter’s right, not already protected as a general
and the Council of Europe as well as the case law of the
principle of law, must be balanced with conflicting EU
ECJ and the ECtHR.
“constitutional” norms. “Sufficient weight” would have
to be given to those rights recognised in the EU Char-
A rapid look at the Charter’s fifty “rights, freedoms
ter. And where EU courts must review the legality of
and principles” should lead the reasonable observer
EU measures or national measures falling within the
to conclude that the Charter may indeed be best
scope of EU law, contrary EU “legislation” will have
described as a gifted crystallization of existing fun-
to be annulled and incompatible national provisions
damental rights contained in the sources previously
set aside. In other words, the major legal effects one
mentioned. What’s more, the language used by the
can infer from the Charter’s new legal status is that
drafters of the Charter also reflects existing national,
it will further encourage judicial references to the
EU and international provisions. However, it is pos-
Charter, whose provisions should also more decisively
sible to argue that some of the Charter’s rights are
guide the EU judiciary when adjudicating fundamental
“new” to the extent that the ECJ has yet to explicitly
rights claims or more generally, in its task of ensuring
guarantee them as general principles of law. In fact,
that in the interpretation and application of the EU
a little more than half of the Charter’s rights codify
Treaties, the law is observed. A less significant conse-
already binding general principles of Union law. What
quence of the Charter’s legally binding status is that
may also be said to be “new” is not the modern and
it might also constrain the EU courts’ interpretative
innovative rights the Charter occasionally refers to
power when it comes to the use of general principles
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of law, although Article 6(3) TEU continues to formally
2.1.3 A Federal Bill of Rights?
enable the EU courts to develop their case law on this
Another point of contention is whether the ECJ has now
“autonomous” basis if they so wish.
been empowered to review any provision of national
law in the light of the Charter. Even in areas where the
2.1.2 An enlargement of the EU’s powers through
EU can legislate, the reach of the Charter is not boun-
the backdoor?
dless. The Charter itself confirms that national autho-
In addition to the question of whether the Charter
rities, when acting outside the scope of EU law, are
guarantees new rights or merely restates existing
not bound by its provisions. In other words, it is still
ones, concerns have been expressed in relation to the
a condition for the EU courts in exercising their juris-
traditional “competence creep” issue. To answer those
diction that the relevant national measures fall “within
concerns, not only does the Charter contain a series
the scope” of EU law. While this may be seen as a fairly
of rather awkward and at times, unnecessary “hori-
ambiguous notion, it is simply wrong to affirm that in-
zontal clauses,” i.e. general provisions describing in
dividuals have now gained the right to institute judicial
particular the Charter’s scope of application and how
proceedings on the basis of any provision of the Char-
its provisions ought to be interpreted, new Article
ter, in any situation, against any measure adopted by
6(1) TEU also makes clear that the Charter’s provi-
national or EU public authorities. If anything, the Char-
sion “shall not extend in any way” EU competences
ter may be criticised for apparently narrowing the cur-
“as defined in the Treaties.” The same provision fur-
rent reach of EU fundamental rights law as it contains
ther stipulates that the Charter’s rights, freedoms and
a provision which provides that the national authorities
principles are to be interpreted in accordance with its
must respect EU fundamental rights “only when they
“horizontal” provisions “and with due regard to the
are implementing Union law” (Art. 51(1)) whereas the
explanations” prepared by the Bureau of the Charter
case law of the ECJ makes clear that EU fundamental
Convention in 2000 and that set out the sources of
rights are binding on national authorities when they (i)
those provisions. Rather pointlessly, if not embarras-
apply provisions of EU law which are based on protec-
singly, national governments also agreed to a Decla-
tion for fundamental rights; (ii) enforce and interpret
ration where they assert, yet again, that “The Charter
EU rules or (iii) invoke EU derogation rules relating
does not extend the field of application of Union law
to the fundamental economic freedoms such as the
beyond the powers of the Union or establish any new
free movement of goods. One may only hope that the
power or task for the Union, or modify powers and
ECJ will eventually remedy the drafting deficiencies of
tasks as defined by the Treaties.”
the Charter on this point. What is nevertheless crystal-clear is that the EU Charter is not going to enable
Policies
As a result, it seems ludicrous to equate legally binding
the ECJ to act in a similar fashion to the US Supreme
status with an enlargement of the EU’s powers through
Court, that is, to define a “federal” standard against
the backdoor. The Charter cannot offer, in itself, a legal
which all national rules may be evaluated and even-
basis for the EU to legislate. The fact that certain Char-
tually set aside. The crucial point is that fundamental
ter rights concern areas in which the EU has little or
rights guaranteed by national constitutions and/or the
no legislative power to act – for instance, the right to
ECHR are complemented, not superseded by the Char-
strike – is no contradiction but merely illustrates the
ter. While one may legitimately express some concerns
drafters’ wish to make clear that the EU must avoid
with regard to the possibility of future judicial activism
indirect interference with such rights. In practice, this
and the potential federalising effect of the Charter, the
means, for instance, that Member States may in fact
ECJ, if only for “diplomatic” reasons, is likely to show
be able to more easily justify national measures that
self-restraint in order not to let the fundamental rights
constitute restrictions on the EU’s “four freedoms” such
“genie” get out of the bottle. One should note, in pas-
as the freedom to provide services, by reference to the
sing, that some Member States actually took advantage
Charter’s rights or principles over which the EU has no
of the constitutional drafting process to seek to further
competence.
constrain the interpretative power of the EU courts by
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post Lisbon Treaty
including a provision which compels them to interpret
these rights guarantee. Without entering into a debate
the Charter’s rights resulting from the constitutional
about whether the programmatic nature of such rights
traditions common to the Member States, “in harmony
undermines the concept of subjective rights or the
with those traditions” (Art. 52(4)). Put succinctly, this
concept of human rights itself, it is important to clarify
is likely to prove a largely futile caveat as the EU courts
their practical scope in order not to disappoint some or
may simply avoid deciding what rights fall within this
worry others. A distinction between justiciability and
category and what constitutes an “harmonious” inter-
invocability of interpretation may be useful. In a few
pretation.
words, without legislative implementation, positive so-
07
cio-economic rights do not have direct effect. Accordin2.2 Selected aspects
gly, private parties cannot directly rely on them before
a court to claim access to or the creation of a particular
2.2.1 Justiciability of the Charter’s socio-eco-
benefit or service. If these socio-economic rights are
nomic rights or the uneasy distinction between
not justiciable per se, courts, however, have to apply
rights and principles
them as “principles” to be taken into account, in par-
The Charter has sometimes been denounced as a po-
ticular when interpreting or reviewing the legality of
tential hindrance for businesses by allegedly making
legislation.
new socio-economic rights equally as enforceable as
more traditional political and civil rights. Undeniably,
This is a decisive aspect, which reflects the current si-
the Charter goes beyond the rights contained in the
tuation under the EU Charter. Indeed, following some
ECHR by including a rather impressive and “progres-
British lobbying, additional amendments were made to
sive” set of economic and social rights in its Title IV
the Charter in 2004 to make clear beyond any doubt
entitled Solidarity. Yet one must emphasize that the
that its provisions which contain principles “may be im-
socio-economic rights referred to in the Charter are
plemented” by EU acts or by national acts when the
mostly drawn from the 1961 Council of Europe’s Social
Member States are implementing EU, and that the
Charter (revised in 1996), the 1989 Community Char-
Charter’s principles “shall be judicially cognisable only
ter of Fundamental Social Rights of Workers and seve-
in the interpretation of such acts and in the ruling on
ral EC Directives.
their legality” (Article 52(5)). While not indispensable
The relatively complex concept of justiciability, i.e. the
and inelegantly phrased, this provision recalls a tra-
quality of a legal provision of being actionable before
ditional distinction between directly enforceable and
a court, explains most of the misrepresentations made
programmatic rights. To describe these programmatic
in relation to the Charter as regards the enforceability
rights as principles makes no legal difference. In other
of its socio-economic provisions. Only classic funda-
words, the Charter’s principles, as with the positive
mental rights (e.g. freedom of expression) are said to
socio-economic rights protected by numerous consti-
be fully justiciable, meaning that they confer on any
tutional texts, call for “concretisation” through legis-
legal person an individual prerogative that can be ju-
lative or executive acts. As previously shown, it does
dicially enforced on a third party and, in particular, on
not mean that they completely lack legal effect. They
public authorities without the need for legislative im-
will become significant for courts when they have to
plementation. This view is misguided to the extent that
interpret or review EU secondary legislation or national
some socio-economic rights are also capable of “hard”
measures falling within the scope of EU law.
legal enforcement. That is the case, for instance, for
rights relating to the worker’s status such as the right
Not completely satisfied with its success on the seman-
to strike or the right to join a union. The situation gets
tic front, the British government’s mistrust of socio-
more complex as regards positive socio-economic
economic rights led to the unfortunate incorporation
rights (e.g. right to education, right to engage in work,
in 2004 of a new Article 52(6) according to which “full
etc.), rights that imply positive action from public
account shall be taken of national laws and practices as
authorities to secure access to the benefits or services
specified in this Charter”. This may seem superfluous
14TH JUNE 2010 / EUROPEAN ISSUE n°173 / Fondation Robert Schuman
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Fundamental Rights Protection in the European Union
post Lisbon Treaty
08
as most of the “solidarity” rights were only guaranteed
powers of EU institutions, including the ECJ, but does
in accordance or under the conditions provided for by
so, however, in an incredibly awkward manner by re-
EU law and national laws and practices. This caveat
ferring in particular to the puzzling notion of “ability”
does not make much sense because the Charter, by
rather than the traditional notion of jurisdiction. And
definition, can only apply to situations governed by EU
generally speaking, this provision will not preclude the
law, in which case any conflicting provision of national
ECJ from ruling that UK or Polish rules or practices are
law must be set aside. The reference to national laws
contrary to EU fundamental rights which are guaran-
and practices may merely be construed as obliging EU
teed as general principles of Union law or which are
institutions to formally take them into account before
further developed by other provisions of EU law. Article
agreeing on new EU legislation. In any event, the op-
1(1), therefore, serves no useful legal purpose.
portunity to further constrain the Charter’s scope, and
Paragraph 2 of the same Article states that “for the
preclude its application in Britain, proved too tempting
avoidance of doubt, nothing in [the Solidarity’s title]
when the EU leaders had to agree on a successor to the
of the Charter creates justiciable rights applicable
defunct Constitutional Treaty. A new Protocol was then
to Poland or the United Kingdom except in so far as
devised in order to satisfy the British government’s
Poland or the United Kingdom has provided for such
“wish … to clarify certain aspects of the application of
rights in its national law.” This provision seems both
the Charter” (Recital 8). This Protocol, which the Polish
superfluous and misleading. Firstly, as previously
President Lech Kaczynski also decided to sign up to,
shown, the Charter’s Solidarity Title does not create
shall eventually apply to the Czech Republic following
judicially enforceable individual rights but lists a series
some last-minute agreement with the Czech President
of principles that must essentially guide the legislative
in October 2009 provided that it is unanimously rati-
action of EU institutions and may be relied on by EU
fied at the time of the conclusion of the next Accession
courts when interpreting or reviewing the legality of EU
Treaty.
legislation. Secondly, Article 1(2) cannot be effective
with regard to the “solidarity” rights that were alrea-
2.2.2 The Protocol on the Application of the EU
dy guaranteed in EU law before the Lisbon Treaty and
Charter to Poland and to the United Kingdom
which have been further developed by EU legislation
A rapid reading of the UK and Polish Protocol should
or can be subject to EU legislation because the EU has
suffice to realise that it does not offer any general “opt-
been conferred with the power to do so. Those socio-
out” or genuine derogation regime from the Charter. It
economic rights should continue to be exercised under
rather clarifies its “application” in relation to the natio-
the conditions and within the limits defined by EU law
nal laws and administrative action of these two coun-
regardless of the British/Polish Protocol. And as is well
tries. In other words, Protocol no. 30 does not render
known, any provision of EU law, which is sufficiently
the Charter wholly inapplicable in the UK and Poland. A
clear, precise and unconditional, must be given direct
brief assessment of the two ineptly worded provisions
effect, i.e. is justiciable. Furthermore, where a socio-
contained in this Protocol confirms that it was essenti-
economic “principle” constitutes a general principle of
ally devised for reasons of domestic politics.
Union law, and one should remember that the ECJ has
retained the power to define new general principles of
Policies
For instance, by providing that the EU Charter “does
law under Article 6(3) TEU, the British/Polish Protocol
not extend the ability” of the ECJ, or any court or tri-
becomes totally irrelevant. In other words, Article 1(2)
bunal of the UK/Poland “to find that the laws, regula-
of the Protocol should not be understood as giving the
tions or administrative provisions, practices or action
UK and Poland carte blanche to evade their other obli-
of Poland or of the United Kingdom are inconsistent
gations under the EU Treaties and EU law generally. In
with the fundamental rights, freedoms and principles
the situation where the Charter guarantees a solidarity
that it reaffirms,” Article 1(1) of the Protocol merely
right, which no other provision of EU law already gua-
restates the obvious as the Charter itself provides
rantees or develops (e.g. the right to strike, a right of
that it does not and cannot be relied on to extend the
access to preventive healthcare), one may assume it is
Fondation Robert Schuman / EUROPEAN ISSUE n°173 / 14th jUNE 2010
Fundamental Rights Protection in the European Union
post Lisbon Treaty
because the EU has not been granted the competence
des that insofar as it contains rights which correspond
to legislate in this particular area. Accordingly, Article
to rights guaranteed by the ECHR, “the meaning and
1(2) does not provide any useful clarification. It has
scope of those rights shall be the same as those laid
always been clear that the EU, on the sole basis of
down by the said Convention”. In addition to this “mi-
the Charter, cannot legislate in order to give a concre-
nimum standard” rule, it is further specified that this
te meaning to a “solidarity” principle and eventually
provision shall not prevent EU law providing more ex-
transform it into an individual enforceable right.
tensive protection. It would seem, therefore, difficult to
Finally, according to Article 2 of the Protocol, any pro-
convincingly argue that the change to the legal status
vision of the Charter referring to national laws and
of the Charter is going to have a detrimental impact
practices shall only apply to Poland or the UK “to the
on the relationship between the EU and the Council of
extent that the rights or principles that it contains are
Europe’s systems of fundamental rights protection. In
recognised in the law or practices” of these two coun-
fact, the Charter has now simply taken a position in
tries. This additional “clarification,” yet again, merely
the EU equivalent to any legally binding national bill
restates the obvious as the Charter already made clear,
of rights. Furthermore, it may be reasonably argued
on British insistence, that those rights for which the EU
that the Charter constitutes a more progressive and
has little or no legislative power would be guaranteed
innovative instrument than the ECHR. Finally, there is
in the cases and under the conditions provided for by
no reason why the ECJ would not continue to pay due
EU law and national laws and practices. This wording
regard to the case law of the ECtHR when developing
was justified on the grounds that it was critical to pre-
its fundamental rights jurisprudence.
serve the current allocation of powers between the EU
As for the alleged “liberticide” character of Article
and the Member States and the principle of subsidia-
52(1) of the Charter, which provides that limitations on
rity. In practice, it means, for instance, that the right to
the exercise of the Charter’s rights must be inter alia
protection against unjustified dismissal, unless further
provided for by law and be made only if they are ne-
developed by EU legislation, must be interpreted and
cessary and genuinely meet objectives of general inte-
implemented in the light of national law.
rest or the need to protect the rights of others, suffice
09
to say here that this provision merely reproduces the
To conclude, the UK and Poland have not secured the
usual conditions governing public interferences with
right to “opt-out” of the Charter. They did, however,
the exercise of fundamental rights. The only original
obtain a Protocol that completely obscures rather than
aspect of the Charter is that instead of repeating these
illuminates how the Charter should be interpreted and
conditions, for stylistic reasons, its drafters decided to
applied. To that extent, one cannot completely exclude
adopt a general “derogation” scheme broadly similar
that some national courts may find it difficult to make
to the one contained in the 1948 Universal Declaration
sense of the Protocol’s provisions. One may only hope
of Human Rights. This is no basis for arguing that the
for the ECJ to eventually clarify the legal effect (or lack
ECJ may show less inclination to strictly interpret any
thereof) of this “clarifying” text.
limitation on the exercise of the rights recognised by
the Charter. In any event, Article 53 further provides
2.2.3 Relationship with ECHR
that “Nothing in this Charter shall be interpreted as
Before exploring some problematical issues as regards
restricting or adversely affecting” fundamental rights
the obligation for the EU accession to the ECHR, the
“as recognised, in their respective fields of application,
argument according to which the Charter sanctifies
by Union law and international law and by internatio-
weaker standards than the ECHR is worth addressing.
nal agreements to which the Union or all the Member
To put it concisely, this critique makes little sense.
States are party,” including the [ECHR], and by the
Not only does Article 6(3) TEU reiterate the traditio-
Member States’ constitutions.”
nal principle that fundamental rights, as guaranteed
Finally, the Lisbon Treaty also paves the way for a pos-
by the ECHR, “shall constitute general principles of the
sible accession of the EU to the ECHR, which means
Union’s law,” Article 52(3) of the Charter also provi-
that EU measures, including ECJ rulings, will be sub-
14TH JUNE 2010 / EUROPEAN ISSUE n°173 / Fondation Robert Schuman
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Fundamental Rights Protection in the European Union
post Lisbon Treaty
10
ject, in due course, to the additional external and spe-
national measures that apply or implement EU Law. In
cialised check of the Strasbourg Court. This, however,
this latter case, the ECtHR agreed to examine a Bri-
is unlikely to prove as easy as a walk in the park.
tish law implementing a treaty signed by all Member
States of the EU and actually ruled against the UK.
3. Paving the Way for EU Accession to the
Yet the case law of the ECtHR has since demonstra-
ECHR
ted a high degree of deference to the extent that it
exercises its control on the basis of the presumption
From being a legal obligation, following the entry into
that fundamental rights protection in the EU system
force of the Lisbon Treaty, EU accession to the ECHR
can normally be considered to be “equivalent” to that
has rapidly become a political priority as shown by the
of the Convention system (13 Sept. 2001, Bosphorus,
Commission’s speedy announcement of its proposed
no. 45036/98). Although this presumption can be re-
negotiation directives on 17 March 2010. Yet proce-
butted on a case-by-case basis where it is shown that
dural and substantive obstacles are many and it may
the protection of ECHR rights was manifestly deficient,
therefore be wise not to move too hastily and take the
the “Bosphorus test,” overall, provides a low threshold
risk of coming up with a shaky accession agreement.
when compared to the usual standard of supervision
the ECtHR normally exercises.
Policies
3.1 Rationale and Procedure
Before returning to the question of whether EU acces-
From a legal point of view, it has often been argued
sion to the ECHR may convince the Strasbourg Court
that the most important reason for full EU accession
to revise Bosphorus (see infra Section 3.2), some pro-
to the ECHR – as opposed to functional accession,
cedural points must be made.
whereby EU institutions would submit to the control
Both the Lisbon Treaty and Protocol no. 14 to the
mechanisms of the ECHR, without the EU becoming a
ECHR, which amends the so-called control system of
contracting party of the ECHR – may be the imperative
the Convention, have already paved the way for EU
to guarantee a congruent development of the case law
accession. This latter text, agreed in 2004 and which
of the ECtHR and the ECJ in the area of fundamen-
entered into force on 1 June 2010, not only provides a
tal rights. Indeed, EU accession would finally enable
much necessary reform of the ECHR “control system”
the ECtHR to directly review EU measures by allowing
but also contains an article making provision for the
natural or legal persons to bring applications against
EU to accede to the Convention (see new Article 59(2)
the EU before the Strasbourg Court under the same
of the ECHR). Reform of the ECHR system and EU ac-
conditions as those applying to applications brought
cession to the ECHR are, in fact, closely connected. To
against national authorities, i.e. after they have ex-
put it differently, a profound structural reform of the
hausted domestic remedies. It would also enable the
ECHR “control system” has always been a prerequisite
EU to defend itself before the Strasbourg Court as well
in order not to add to the massive backlog of approxi-
as being represented in this very same Court with an
mately 120,000 pending cases before the Strasbourg
EU judge.
Court as of 31 December 2009. In a few words, Pro-
As things currently stand, only national measures fal-
tocol no. 14 aims to improve the effectiveness of the
ling within the scope of EU law are effectively subject
ECHR control system by providing mechanisms that
to the jurisdiction of the Strasbourg Court, i.e. acts
should enable the Court to deal more promptly with
of the Member States derogating from EU law or im-
clearly inadmissible applications and repetitive appli-
plementing EU secondary legislation. It may also be
cations. Regardless of whether the changes made by
worth mentioning that the ECtHR initially held that it
Protocol no. 14 are going to prove sufficiently radical to
lacked jurisdiction to examine proceedings before, or
address the continuing increase in the workload of the
decision of, the organs of the EC as the EC is not a
ECtHR, as regards the future EU accession, it must be
party to the ECHR (10 July 1978, CFDT, no. 8030/77)
made clear that “further modifications to the Conven-
before finally ruling, in the Matthews case (18 Feb.
tion will be necessary in order to make such accession
1999, no. 24833/94), that it can review, in principle,
possible from a legal and technical point of view” (Ex-
Fondation Robert Schuman / EUROPEAN ISSUE n°173 / 14th jUNE 2010
Fundamental Rights Protection in the European Union
post Lisbon Treaty
planatory Report, Protocol no. 14, § 101). It is gene-
the European Convention” and for the future accession
rally assumed that these additional modifications will
agreement to offer “mechanisms necessary to ensure
be included either in a new amending protocol or in
that proceedings by non-Member States and indivi-
the future accession agreement to be soon negotiated
dual applications are correctly addressed to Member
between the EU and the Council of Europe.
States and/or the Union as appropriate.” In addition,
11
the agreement must ensure that EU accession does not
With respect to this future accession agreement, being
“affect the competences of the Union or the powers of
no ordinary treaty, it must be negotiated and conclu-
its institutions.” One should note, in passing, that this
ded by the EU in accordance with the specific require-
issue of competence appears to be particularly salient
ments laid down in Article 218 TFEU. This means that
in relation to potential EU accession to the ECHR Pro-
the Council will have to unanimously agree to adopt
tocols that have not been all ratified by the Member
the decision concluding the agreement after having
States of the EU. One option is for the Commission to
obtained the consent of the European Parliament. Fur-
be mandated to negotiate accession to all ECHR pro-
thermore, the accession agreement will have to be ap-
tocols that concern rights contained in the EU Char-
proved by each EU Member State in accordance with
ter before deciding at a later stage which of the ECHR
their respective constitutional requirements. A Lisbon-
Protocols the EU must sign up to. Last but not least,
type ratification drama cannot therefore be totally ex-
the future accession agreement must make clear that
cluded. As if this was not sufficiently complicated, the
Member States of the EU will continue to be bound by
accession agreement will also have to be approved by
Article 344 TFEU according to which they “undertake
all 47 existing contracting parties to the ECHR, again,
not to submit a dispute concerning the interpretation
in accordance with their respective national constitu-
or application of the Treaties to any method of settle-
tional requirements. This means that some non-EU
ment other than those provided for therein.”
countries might also be tempted to emulate Russia’s
past obstruction as regards the ratification of Protocol
A particularly “remarkable” aspect of this EU Protocol
no. 14. Finally, the ECJ might even be asked to issue
no. 8 is the fact that it does not explain precisely what
an advisory opinion as to whether the envisaged ac-
the specific characteristics of the EU and its laws are.
cession agreement is compatible with the EU Treaties.
As a result, its precise scope remains quite a mystery.
Notwithstanding these numerous procedural hurdles, a
From an institutional point of view, it may nonethe-
number of legal, technical and institutional issues have
less be argued that it implies first and foremost the
also to be addressed in the mandate now being devised
appointment of an EU judge to ensure both adequate
between the Commission and the Council of the EU.
representation of the EU within the Strasbourg Court
and specialised expertise on the “specific characteris-
3.2 Some Problematical Issues
tics” of EU law. The EU judge’s mandate may either
If we are to believe some newspapers, agreeing on a
be similar to the other judges’ terms of office – in the
negotiation mandate is not proving an easy task but an
Strasbourg system each contracting party is represen-
agreement is likely to be found before the end of the
ted by a judge – or its role may be more limited, which
Spanish Presidency. The Commission would then be in
may mean, for instance, that the EU judge should in-
a position to negotiate the EU accession treaty to the
tervene only in EU law-related cases although this last
ECHR with the Council of Europe.
option seems rather unpractical. As regards the ap-
Among the various divisive issues, one may first men-
pointment of the EU judge, it is quite possible that the
tion the reference made by the new EU Protocol no.
future agreement will make provision for an election by
8 relating to Article 6(2) of the TEU, to the need to
the Parliamentary Assembly of the Council of Europe
respect the “the specific characteristics of the Union
from a list of three candidates presented by the EU. In
and Union law.” This Protocol further refers to the obli-
all likelihood, the European Parliament will be associa-
gation to preserve “the specific arrangements for the
ted to the short listing process to be conducted by the
Union’s possible participation in the control bodies of
European Commission and/or the Council of the EU. It
14TH JUNE 2010 / EUROPEAN ISSUE n°173 / Fondation Robert Schuman
Policies
Fundamental Rights Protection in the European Union
post Lisbon Treaty
12
may also have a right to appoint a certain number of
should and by the same token, Member States should
representatives to the Parliamentary Assembly in order
also be allowed to intervene as co-defendant in a case
to participate to the election of judges to the ECtHR.
brought against the EU subject to the same conditions.
The EU via the European Commission is also likely to
Generally speaking, it is important to ensure that pro-
have a representative on the Committee of Ministers of
ceedings by non-Member Sates and individual applica-
the Council of Europe in which case the EU represen-
tions could properly involve Member States and/or the
tative would notably be able to participate in the su-
Union since according to the Convention, a contracting
pervision of the execution of the ECtHR judgments but
Party is responsible for all acts and omissions of its
this is, once more, relatively controversial and the EU
organs.
representative might see his/her right to vote limited
As regards the review of the compatibility of EU acts
to cases involving EU law.
with fundamental rights, it is particularly important
that the accession agreement pays attention not to
Concerning the substantive features of Union law, it
affect the authority of the ECJ. This is why some have
appears that the future agreement must essentially
suggested the adoption of a specific mechanism whe-
respect the principle of autonomy of the EU legal order.
reby prior ECJ intervention would be made compulsory
In particular, EU accession to the ECHR must not jeo-
before any ruling of the ECtHR. Such a system, howe-
pardize the interpretative autonomy of the ECJ. Yet, it
ver, would lead to additional delays for the parties and
is well established in the case law of the ECtHR that
would raise the risk of open conflict between the two
it is primarily for the national authorities, and notably
European courts. As correctly observed in the EP re-
the national courts, to interpret and apply domestic
solution of 19 May 2010 on the institutional aspects
law. Furthermore, the ECtHR does not rule on the vali-
of EU accession to the ECHR, “it would be unwise to
dity of national law but on their compatibility with the
formalise relations” between the ECJ and the ECtHR
Convention on a case-by-case basis and in concreto.
“by establishing a preliminary ruling procedure before
The application of these principles to EU institutions
the latter or by creating a body or panel which would
and EU law should preclude therefore any problem on
take decisions when one of the two courts intended
that front.
to adopt an interpretation of the ECHR which differed
More problematic is the necessary adaptation of the
from that adopted by the other” (para. 15). It may be
proceedings in both individual and inter-State dispu-
that no specific mechanism between the two European
tes before the ECtHR. Individuals should be allowed
Courts is actually required and, as a consequence, the
to challenge both the EU and the Member State where
exhaustion of legal remedies will continue to be an es-
relevant. Regarding the settlement of inter-state dis-
sential feature in the post accession system of judicial
putes, while there should be no restriction on non-EU
protection. This means, in practice and to oversimplify,
countries initiating proceedings against the EU in the
that no natural or legal person will be allowed to ini-
Strasbourg Court, the principle of autonomy of the EU
tiate proceedings in the Strasbourg Court unless it has
constitutional order requires that EU Member States
exhausted the internal system of remedies – the pre-
be precluded from relying on the relevant ECHR pro-
liminary ruling procedure (Article 267 TFEU) being an
cedure (Article 33 ECHR) against the EU in the context
integral part of this system. It is particularly impera-
of disputes solely concerning the interpretation or ap-
tive, if only to respect the principle of subsidiarity in-
plication of EU law. Any different solution would be
herent to the Convention and the effective functioning
contrary to Article 344 TFEU and generally speaking,
of the EU system of judicial remedies, that the ECJ be
it is important not to enable the Member States of the
able to assess the validity of EU acts before that the
EU to circumvent the exclusive jurisdiction of the ECJ.
ECtHR can review them.
Another important issue is whether the EU should be
Policies
allowed to intervene as co-defendant in any case brou-
Furthermore, as previously mentioned, the ECJ, in its
ght against a Member State before the ECtHR when the
fundamental rights jurisprudence, has long relied on
case raises an issue concerning EU law. We believe it
the provisions of the ECHR and the case law of the
Fondation Robert Schuman / EUROPEAN ISSUE n°173 / 14th jUNE 2010
Fundamental Rights Protection in the European Union
post Lisbon Treaty
Strasbourg Court even though it had no obligation to
law, to a low degree of judicial scrutiny in Strasbourg.
do so. This “specific feature” of the ECJ’s jurisprudence
In any event, the accession agreement will probably be
explains, in part, why the ECtHR agreed to consider
decisive for the future of the Bosphorus approach.
13
that the EU protects fundamental rights in a manner
that can be considered equivalent to that for which the
As should be evident from the points made above, ne-
Convention provides and devises a “manifest deficien-
gotiating the accession treaty and securing EU acces-
cy test” in the Bosphorus case, that is, a low standard
sion to the ECHR is likely to prove a slow, onerous and
of scrutiny for EU measures. It has been argued that
difficult process. Political enthusiasm may therefore be
EU accession to the ECHR may impact the Bosphorus
soon tempered by the dry legal complexity this process
approach. Put differently, the ECtHR’s rather defe-
entails.
rential approach may be dropped or extended. Those
in favour of abandoning this doctrine argue that it is
Authors: Xavier Groussot,
important to avoid any double standard between the
Associate Professor of Law, Faculty of Law, Lund
State parties to the ECHR and the EU. An extension of
University ([email protected])
the Bosphorus approach’s scope of application would
Laurent Pech,
mean, by contrast, that EU regulations or Commission
Lecturer in Law, Jean Monnet Chair in EU Public Law,
decisions, for instance, would be subject, similarly to
National University of Ireland, Galway
national measures that strictly apply or implement EU
([email protected]).
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